Impartial Examiner I

20 February 1788

by

To the free people of Virginia.

Countrymen and Fellow-Citizens,

That the subject, which has given rise to the following observations, is of
the highest consequence to this country, requires not the aid of logical proof;
that it merits the most serious attention of every member of this community, is
a fact not to be controverted. Will not a bare mention of the new Foederal
Constitution justify this remark? To foreigners or such, whose local
connections form no permanent interest in America, this may be totally
indifferent; and to them it may afford mere matter of speculation and private
amusement. When such advert to the high and distinguished characters, who have
drawn up, and proposed a set of articles to the people of an extensive
continent as a form of their future government, an emotion of curiosity may
induce them to examine the contents of those articles: and they may, perhaps,
from having contemplated on a former situation of those people—that they
had struggled against a potent enemy—that they had by their virtuous and
patriotic exertions rescued themselves from impending danger—that they
had used the like endeavors to establish for themselves a system of government
upon free and liberal principles—that they had in pursuance of those
endeavors chosen a system, as conducive to the great ends of human happiness,
the preservation of their natural rights and liberties—
that this system has prevailed but a few years; and now already a change, a
fundamental change therein is meditated:—strangers, I say, having
contemplated on these circumstances, may be led to consider this nation, as a
restless and dissatisfied people, whose fickle inconsistent minds suffer them
not to abide long in the same situation; who perpetually seeking after new
things throw away one blessing in pursuit of another: and while they are thus
indulging their caprice—lose all, ere any can ripen into maturity. If
the unconcerned part of those among us entertain themselves in this manner, can
any good American be content to deserve such reflections? Will not all rather
feel an honest indignation, if they once perceive their country stamped with a
character like this? And yet, may we not justify such conceptions, if we thus
precipitate ourselves into a new government before we have sufficiently tried
the virtues of the old? So incident is error to the human mind, that it is not
to be wondered at indeed, if our present Constitution is incomplete. The best
regulated governments have their defects, and might perhaps admit of
improvement: but the great difficulty consists in clearly discovering the most
exceptionable parts and judiciously applying the amendments. A wise nation
will, therefore, attempt innovations of this kind with much circumspection.
They will view the political fabric, which they have once reared, as the
sacred palladium of their happiness;—they will touch it, as a man
of tender sensibility toucheth the apple of his own eye,—they will touch
it with a light, with a trembling—with a cautious hand,—lest they
injure the whole structure in endeavoring to reform any of its parts. In small
and trivial points alterations may be attempted with less danger; but—
where the very nature, the essence of the thing is to be changed: when the
foundation itself is to be transformed, and the whole plan entirely new
modelled;—should you not hesitate, O Americans? Should you not pause
—and reflect a while on the the important step, you are about to take?
Does it not behove you to examine well into the nature and tendency of the
Constitution now proposed for your adoption? And by comparing it with your
present mode of government, endeavor to distinguish which of the two is most
eligible? Whether this or that is best calculated for promoting
your happiness? for obtaining and securing those benefits, which are the great
object of civil society? Will it be consistent with the duty, which you owe to
yourselves, as a nation, or with the affection, which you ought to bear for
your posterity, if you rashly or inconsiderately adopt a measure, which is to
influence the fate of this country for ages yet to come? How will it accord
with your dignity and reputation, as an independent people, if either through
an over-weaning fondness for novelty you are suddenly transported on the wings
of imagination, and too hastily make up your thoughts on this great subject; or
by sinking into a listless inactivity of mind, view it as an indifferent matter
unworthy of any deliberate consideration? Will any respect? Will any honor?
Will any veneration be due to the memory of yourselves, as ancestors, if
millions of beings, who have not yet received their birth, when you are all
mouldered into dust, should find themselves fixed in a miserable condition by
one injudicious determination of your's at this period? If you see no
impropriety in these questions, the suggestions contained in them will not
appear altogether unworthy of attention. One moment's reflection, it is humbly
presumed, will render it obvious that on this occasion they are not
impertinently propounded.

In pursuing this address I beg leave to premise that the only true point of
distinction between arbitrary and free governments seems to be, that in the
former the governors are invested with powers of acting according to their own
wills, without any other limits than what they themselves may understand to be
necessary for the general good; whereas in the latter they are intrusted with
no such unlimited authority, but are restrained in their operations to conform
to certain fundamental principles, the preservation whereof is expressly
stipulated for in the civil compact: and whatever is not so stipulated
for is virtually and impliedly given up. Societies so constituted invest their
supreme governors with ample powers of exerting themselves according to their
own judgment in every thing not inconsistent with or derogatory to those
principles; and so long as they adhere to such restrictions, their deeds ought
not to be rescinded or controuled by any other power whatsoever. Those
principles are certain inherent rights pertaining to all mankind in a state of
natural liberty, which through the weakness, imperfection, and depravity of
human nature cannot be secured in that state. Men, therefore, agree to enter
into society, that by the united force of many the rights of each
individual may be protected and secured. These are in all just governments laid
down as a foundation to the civil compact, which contains a
covenant between each with all, that they shall enter into
one society to be governed by the same powers; establishes for that purpose the
frame of government; and consequently creates a Convention
between every member, binding those, who shall at any time be intrusted
with power, to a faithful administration of their trust according to the form
of the civil policy, which they have so constituted, and obliging all to
a due obedience therein. There can be no other just origin of civil power, but
some such mutual contract of all the people: and although their great object in
forming society is an intention to secure their natural rights; yet the
relations arising from this political union create certain duties and
obligations to the state, which require a sacrifice of some portion of those
rights and of that exuberance of liberty, which obtains in a state of nature.
—This, however, being compensated by certain other adventitious rights
and privileges, which are acquired by the social connection; it follows that
the advantages derived from a government are to be estimated by the strength
of the security, which is attended at once with the least sacrifice
and the greatest acquired benefits. That government, therefore, which is
best adapted for promoting these three great ends, must certainly be the
best constituted scheme of civil policy. Here, then, it may not be
improper to remark that persons forming a social community cannot take too much
precaution when they are about to establish the plan of their government. They
ought to construct it in such a manner as to procure the best possible security
for their rights;—in doing this they ought to give up no greater share
than what is understood to be absolutely necessary:—and they should
endeavor so to organize, arrange and connect it's several branches, that when
duly exercised it may tend to promote the common good of all, and
contribute as many advantages, as the civil institution is capable of. It has
been before observed that the only just origin of civil power is a contract
entered into by all the people for that purpose.—If this position be
true (and, I dare presume, it is not controverted, at least in this country)
right reason will always suggest the expediency of adhering to the essential
requisites in forming that contract upon true principles. A cautious people
will consider all the inducements to enter into the social state, from
the most important object down to the minutest prospect of advantage. Every
motive with them will have its due weight. They will not pay a curious
attention to trifles and overlook matters of great consequence:—and in
pursuing these steps they will provide for the attainment of each point
in view with a care—with an earnestness proportionate to its dignity,
and according as it involves a greater or a lesser interest. It
is evident, therefore that they should attend most diligently to those sacred
rights, which they have received with their birth, and which can neither be
retained to themselves, nor transmitted to their posterity, unless they are
expressly reserved: for it is a maxim, I dare say, universally
acknowledged, that when men establish a system of government, in granting the
powers therein they are always understood to surrender whatever they do not so
expressly reserve. This is obvious from the very design of the civil
institution, which is adopted in lieu of the state of natural liberty, wherein
each individual, being equally intitled to the enjoyment of all natural rights,
and having equally a just authority to exercise full powers of acting, with
relation to other individuals, in any manner not injurious to their rights,
must, when he enters into society, be presumed to give up all those powers into
the hands of the state by submitting his whole conduct to the direction
thereof. This being done by every member, it follows, as a regular conclusion,
that all such powers, whereof the whole were possessed, so far as they related
to each other individually, are of course given up by the mere act of union. If
this surrender be made without any reservation, the conclusion is equally plain
and regular, that each and all have given up not only those
powers, which relate to others, but likewise every claim, which pertained to
themselves, as individuals. For the universality of the grant in this case must
necessarily include every power of acting, and every claim of
possessing or obtaining any thing—except according to the regulations of
the state. Now a right being properly defined, "a power or claim
established by law, to act, or to possess, or to obtain something from
others,"4 every natural right is such power or claim
established by the law of nature. Thus, it is manifest, that in a society
constituted after this manner, every right whatsoever will be under the power
and controul of the civil jurisdiction. This is the leading characteristic of
an arbitrary government, and whenever any people establish a system like this,
they subject themselves to one, which has not a single property of a free
constitution. Hence results the necessity of an express stipulation for
all such rights as are intended to be exempted from the civil authority.

Permit me now, my country men, to make a few observations on the proposed
Foederal Constitution. In this attempt the subject, as it is arduous and
difficult, naturally impresses the modest mind with diffidence: yet being of
the last importance, as involving in it the highest interest, that freemen can
have—all that is dear and valuable to the citizens of these United
States; a consciousness of the strong claim, which this subject has, to a free
and general discussion, has prevailed over that discouraging idea so far as to
produce the present address to you. This is done with a reliance on that
benevolence and liberality of sentiment, with which you have hitherto been
actuated. From these benign qualities, it is hoped, the most favorable
indulgence will be granted, and that the zeal, with which this is written, will
be allowed in some measure an excuse for its defects. However imperfect,
therefore this may be, however inadequate to your own ideas, or to the wishes
of him, who offers it to your consideration; you are hereby intreated to let
the perusal, with which you may think proper to favor it, be serious, candid,
dispassionate—as it relates to a common cause, in which all are alike
concerned.

Suffer me, then, in the first place to advert to a part of the sixth article
in this constitution. It may, perhaps, appear somewhat irregular, to begin with
this article, since it is almost the last proposed: yet, if it be considered
that this at once defines the extent of Congressional authority, and
indisputably fixes its supremacy, every idea of impropriety on this head will
probably vanish. The clause alluded to contains the following words, "This
constitution, and the laws of the United States, which shall be made in
pursuance thereof, and all treaties made, or which shall be made, under the
authority of the United States, shall be the supreme law of the land; and the
judges in every state shall be bound thereby; any thing in the constitution or
laws of any state to the contrary, notwithstanding." If this constitution
should be adopted, here the sovereignty of America is ascertained and fixed in
the foederal body at the same time that it abolishes the present independent
sovereignty of each state. Because this government being general, and not
confined to any particular part of the continent; but pervading every state and
establishing its authority equally in all, its superiority will consequently be
recognized in each; and all other powers can operate only in a secondary
subordinate degree. For the idea of two sovereignties existing within the same
community is a perfect solecism. If they be supposed equal, their operation
must be commensurate, and like two mechanical powers of equal momenta
counteracting each other;—there the force of the one will be destroyed
by the force of the other: and so there will be no efficiency in either. If one
be greater than the other, they will be similar to two unequal bodies in motion
with a given degree of velocity, and impinging each other from opposite points;
—the motion of the lesser in this case will necessarily be destroyed by
that of the greater: and so there will be efficiency only in the greater. But
what need is there for a mathematical deduction to shew the impropriety of two
such distinct co-existing sovereignties? The natural understanding of all
mankind perceives the apparent absurdity arising from such a supposition:
since, if the word means any thing at all, it must mean that supreme
power, which must reside somewhere instate; or, in other terms, it is the
united powers of each individual member of the state collected and consolidated
into one body. This collection, this union, this supremacy of power can,
therefore, exist only in one body. This is obvious to every man: and it has
been very properly suggested that under the proposed constitution each state
will dwindle into "the insignificance of a town corporate." This
certainly will be their utmost consequence; and, as such, they will have no
authority to make laws, even for their own private government any farther than
the permissive indulgence of Congress may grant them leave. This, Virginians,
will be your mighty, your enviable situation after all your struggles for
independence! and, if you will take the trouble to examine, you will find that
the great, the supereminent authority, with which this instrument of union
proposes to invest the foederal body, is to be created without a single check
—without a single article of covenant for the preservation of those
inestimable rights, which have in all ages been the glory of freemen. It is
true, "the United States shall guarantee to every state in this union a
republican form of government": yet they do not guarantee to the different
states their present forms of government, or the bill of rights thereto
annexed, or any of them; and the expressions are too vague, too indefinite to
create such a compact by implication. It is possible that a "republican
form" of government may be built upon as absolute principles of despotism
as any oriental monarchy ever yet possessed. I presume that the liberty of a
nation depends, not on planning the frame of government, which consists merely
in fixing and delineating the powers thereof; but on prescribing due limits to
those powers, and establishing them upon just principles.

It has been held in a northern state by a zealous advocate for this
constitution that there is no necessity for "a bill of rights" in the
foederal government; although at the same time he acknowledges such necessity
to have existed when the constitutions of the separate governments were
established. He confesses that in these instances the people "invested
their representatives with every power and authority, which they did not in
explicit terms reserve": but "in delegating foederal powers,"
says he, "every thing, which is not given, is reserved." Here is a
distinction, I humbly conceive, without a difference, at least in the present
enquiry. How far such a discrimination might prevail with respect to the
present system of union, it is immaterial to examine: and had the observation
been restrained to that alone, perhaps it might be acknowledged to contain some
degree of propriety. For under the confederation it is well known that the
authority of Congress cannot extend so far as to interfere with, or exercise
any kind of coercion on, the powers of legislation in the different states; but
the internal police of each is left free, sovereign and independent: so that
the liberties of the people being secured as well as the nature of their
constitution will admit; and the declaration of rights, which they have laid
down as the basis of government, having their full force and energy, any
farther stipulation on that head might be unnecessary. But, surely, when this
doctrine comes to be applied to the proposed foederal constitution,
which is framed with such large and extensive powers, as to transfer the
individual sovereignty from each state to the aggregate body,—a
constitution, which delegates to Congress an authority to interfere with, and
restrain the legislatures of every state—invests them with supreme
powers of legislation throughout all the states—annihilates the separate
independency of each; and, in short—swallows up and involves in the
plenitude of its jurisdiction all other powers whatsoever:—I shall not
be taxed with arrogance in declaring such an argument to be fallacious; and
insisting on the necessity of a positive unequivocal declaration in favor of
the rights of freemen in this case even more strongly than in the case of their
separate governments. For it seems to me that when any civil establishment is
formed, the more general its influence, the more extensive the powers, with
which it is invested, the greater reason there is to take the necessary
precaution for securing a due administration, and guarding against
unwarrantable abuses.